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January 6, 2005.

JOHN ASHCROFT, Attorney General of the United States of America, Defendant.

The opinion of the court was delivered by: ELLEN S. HUVELLE, District Judge


Plaintiff, a former employee of the Federal Bureau of Investigation ("FBI"), has brought suit under Title VII of the Civil Rights Act of 1964, codified as amended at 42 U.S.C. § 2000e et seq., claiming retaliation and constructive discharge. In light of an earlier Title VII suit filed by plaintiff against this defendant, defendant has moved to dismiss this action based on the doctrine res judicata.*fn1 For the reasons stated below, the Court concludes that defendant's motion should be denied in part and granted in part, but it will require plaintiff to file an amended complaint consistent with this Memorandum Opinion.


  On April 3, 2003, plaintiff filed her first suit against defendant, claiming discrimination and retaliation under Title VII, as well as violations of the Privacy Act and First Amendment (hereinafter "Velikonja I"). See Velikonja v. Mueller, 315 F. Supp. 2d 66 (D.D.C. 2004) (dismissing Counts I and IV); Velikonja v. Mueller, 2004 WL 3021397 (D.D.C. Dec. 21, 2004) (granting summary judgment on remaining counts). The claims at issue in the first action arose from the FBI's investigations of her allegedly fraudulent time and attendance practices (initiated in October 2000 and October 2001), the agency's delay in completing these investigations, the disciplinary penalty imposed on plaintiff in January 2002 as a result of the first investigation, and other alleged adverse employment actions that took place in 2001, 2002 and 2003. (See Velikonja I Am. Compl. ¶¶ 31-47.) The facts underlying those claims are set out in the Court's previous opinions and need not be repeated here.

  After filing her original complaint in Velikonja I on April 3, plaintiff filed an amended complaint on September 2, 2003, changing the named defendant but not adding any new claims. On September 4, 2003, plaintiff notified the FBI of her intent to resign. (Def.'s Reply Attach. (Letter of Resignation).) According to plaintiff, she filed an informal complaint of discrimination and retaliation on October 16, 2003, claiming that her supervisors had denied her permission to take leave without pay in retaliation for her EEO activities, and that as a result of this and other retaliatory acts, her resignation constituted constructive discharge. (Compl. ¶ 63; Pl.'s Opp'n Attach. (EEOC Letter, Mar. 24, 2004).) The Bureau denied plaintiff's administrative claim as untimely and issued a right-to-sue letter on March 29, 2004. (Pl.'s Opp'n Attach.) Pursuant to the Court's August 15, 2003 Scheduling Order, discovery in Velikonja I closed on April 1, 2004. The Court issued a Memorandum Opinion on April 13, 2004, dismissing Counts I and IV of the complaint. On May 3, 2004, the Court reopened discovery for limited purposes until June 14, 2004, and on June 25, it denied plaintiff's further request for discovery beyond that which had been previously granted. The Court stated that "it would not countenance plaintiff's blatant disregard of the rules governing discovery and this Court's scheduling order." Velikonja I, Mem. Op. and Order (D.D.C. June 25, 2004). The Court issued a final judgment in Velikonja I on December 21, 2004.

  On June 18, 2004, plaintiff commenced her second suit (hereinafter "Velikonja II"), which was stayed pending resolution of the first action. (See Velikonja II, Civ. No. 04-1001, Docket Entry, Oct. 27, 2004 (granting defendant's motion to stay).) While the factual background underlying plaintiff's first and second complaints is essentially the same, plaintiff appears to have included several new allegations in her second complaint. In support of Count I (Retaliation), she alleges that beginning in May 2003 and continuing through August 2003, supervisors John Krump and Patrick Kelley "repeatedly refused to grant [her] leave without pay" in retaliation for filing her first suit. (Compl. ¶ 49.) Further, she alleges that she was "forced to resign" because she "could not obtain a transfer out of the Procurement Law Unit," because "Pat Kelley unjustifiably gave her adverse recommendations," because the investigations of her time and attendance practices were unresolved, and because "the FBI refused to provide [her] with work assignments commensurate with her background and experience." (Id. ¶ 58-62.) These actions, combined with the failure "to allow her continued requests for leave without pay so that she might visit her dying mother and attend other family responsibilities" led to what she alleges in Count II was a constructive discharge. (Id. ¶ 73.)


  I. Motion to Dismiss

  Defendant moves to dismiss the complaint under Federal Rule of Civil Procedure 41(b), arguing that plaintiff violated the Court's scheduling and discovery orders in Velikonja I. (Def.'s Mot. at 1.) The Court's orders in Velikonja I applied only to that action, however, and thus, Rule 41(b) does not apply here. As defendant's arguments center on res judicata as an affirmative defense, its motion is more properly construed as a motion to dismiss under Rule 12(b)(6). Under this rule, dismissal is appropriate only where a defendant has shown "`beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief.'" In re Swine Flu Immunization Prods. Liab. Litig., 880 F.2d 1439, 1442 (D.C. Cir. 1989) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1955)). The allegations in plaintiff's complaint are presumed true and all reasonable factual inferences should be construed in her favor. Maljack Prods., Inc. v. Motion Picture Ass'n of Am., Inc., 52 F.3d 373, 375 (D.C. Cir. 1995); Phillips v. Bureau of Prisons, 591 F.2d 966, 968 (D.C. Cir. 1979).

  II. Res Judicata

  The doctrine of res judicata, "encourages a plaintiff to mount in a single action its claims against the party which it has haled into court." U.S. Indus. v. Blake Construction Co., 765 F.2d 195, 209 (D.C. Cir. 1985) (internal citation omitted). It acts to "conserve judicial resources, avoid inconsistent results, engender respect for judgments of predictable and certain effect, and to prevent serial forum-shopping and piecemeal litigation." Hardison v. Alexander, 655 F.2d 1281, 1288 (D.C. Cir. 1981). For plaintiff's claim to be barred, there must be (1) an identity of the cause of action in both suits; (2) identity of the parties in both suits; and (3) a final judgment on the merits by a court of competent jurisdiction. Does I Through III v. Dist. Of Columbia, 238 F. Supp. 2d 212, 217 (D.D.C. 2002).

  The parties to this suit and to Velikonja I are identical, and this Court decided Velikonja I on the merits on December 21, 2004. Velikonja v. Mueller, 2004 WL 3021397 (D.D.C. Dec. 21, 2004). Thus, the only contested issue is whether the new suit involves the "same cause of action." Drake v. F.A.A., 291 F.3d 59, 66 (D.C. Cir. 2002). "Whether two cases implicate the same cause of action turns on whether they share the same `nucleus of facts.' . . . In pursuing this inquiry, the [C]ourt will consider `whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understandings or usage.'" Apotex, Inc. v. Food and Drug Admin., 2004 WL 2937247, at *7 (D.C. Cir. Dec. 21, 2004) (quoting I.A.M. Nat'l Pension Fund v. Indus. Gear Mfg. Co., 723 F.2d 944, 949 n. 5 (D.C. Cir. 1983)). In contrast to issue preclusion, new claims need not have actually been adjudicated in an earlier action to be barred by res judicata. It is sufficient if the claims "could have been raised" at an earlier juncture. U.S. Indus., 765 F.2d at 207. See also Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981); Polsby v. Thompson, 201 F. Supp. 2d 45, 50 (D.D.C. 2002).

  Plaintiff argues that her new claims do not duplicate Velikonja I because on the date her first complaint was filed (April 3, 2003), the events alleged in her new complaint (occurring May through September 2003) had not yet taken place and therefore were both distinct from, and impossible to include in, the first complaint. (Pl.'s Opp'n at 2.) Moreover, she argues that due to exhaustion requirements, she could not have joined her claims to the complaint prior to March 29, 2004, when she received notice of a final administrative decision (i.e., a "right to sue" letter). By that date, she contends, it would have been impracticable to amend the complaint or conduct discovery on her newly exhausted claims.*fn2 (Id. at 5, 9.) Defendant responds that, nevertheless, plaintiff's new claims "were available to [her] in the First Action" and thus cannot be litigated now. (Def.'s Mot. at 4.) Defendant argues that the operative date is not the date the suit was originally filed, but the date when plaintiff filed her first amended complaint (September 2, 2003). At that time, the denials of plaintiff's leave requests in summer 2003 had already occurred, as had the other acts alleged to have caused plaintiff to resign (e.g., her inability to obtain a transfer out of the Procurement Law Unit, the prolonged investigation, etc.). In response to plaintiff's argument that she could not have included the new claims in her amended complaint because they had not been exhausted until approximately seven months later (on March 29, 2004), defendant takes the position that, under Velikonja I, plaintiff need not have exhausted those claims. Defendant also argues that, even if exhaustion had been required, res judicata bars any claim that could conceivably have been brought at any time while the first suit was pending. In other words, defendant contends that "plaintiff could have litigated these claims in the first action by seeking leave to amend or supplement her pleadings" even as late as the end of March because Velikonja I was not "adjudicated" until December. (Def.'s Reply at 2, 7)

  Although the two actions may "share the same nucleus of facts," the D.C. Circuit has made clear that "[r]es judicata does not bar parties from bringing claims based on material facts that were not in existence when they brought the original suit." Apotex, 2004 WL 2937247, at *7. See also Drake v. F.A.A., 291 F.3d at 66-67; Stanton v. Dist. of Columbia Court of Appeals, 127 F.3d 72, 78-79 (D.C. Cir. 1997); Page v. U.S., 729 F.2d 818, 820 n. 12 (D.C. Cir. 1984). Similarly, res judicata "does not prevent parties from later bringing claims that `would have been utterly impracticable to join' in an earlier suit," Apotex, 2004 WL 2937247, at *8 (quoting U.S. Indus., 765 F.2d at 205 n. 21), or those that "could not have been anticipated when the first suit was filed." U.S. Indus. 765 F.2d at 205 n. 21. "For the plaintiff to be precluded from again raising [a] claim, he must have previously received a `full and fair opportunity' to litigate it." Kremer v. ...

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